Bench Memos

Re: When Is a Recess Not a Recess?

Update (1/12): OLC did indeed issue an opinion, so much of this post rests on a mistaken factual premise.

Matt: On initial consideration, I’m far more persuaded by Michael McConnell’s argument (in today’s Wall Street Journal) that President Obama’s recent purported recess appointments are unlawful than I am by Laurence Tribe’s* or John Elwood’s defenses of those appointments. But, as a former member of DOJ’s Office of Legal Counsel, I find even more remarkable the apparent fact that the White House did not receive OLC’s legal advice on this matter. As McConnell puts it, that’s “a sure sign the administration understood it was on shaky legal ground.”

Now perhaps it will turn out that the White House did receive an OLC opinion endorsing its proposed recess appointments, though if it had, you’d think it would be eager to highlight that fact. Given how closely OLC works with the White House counsel’s office, it seems far more likely that OLC informally told the White House counsel’s office what its advice would likely be—that the recess appointments are unlawful—and that the White House therefore decided not to request OLC’s advice.

OLC’s legal judgment would, of course, not be binding on the president, but one would hope that the White House would have sound bases for rejecting (or turning away) its advice.

* As Adam White explains, Tribe’s current position contradicts his previous one in multiple amusing respects.

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